4.  The applicant was born in 1976 and is currently serving a life sentence in Zhytomyr Prison.
5.  In 2001 the applicant was prosecuted for two counts of murder. Those criminal proceedings had been examined by the Court in the first case of the applicant (see Yaremenko v. Ukraine, no. 32092/02, 12 June 2008). The abridged facts from the above judgment, insofar as relevant, read as follows.
6.  On 27 January 2001 the applicant was arrested on suspicion of murdering a taxi driver, M., and of several other crimes committed in 2001 (“the 2001 crimes”). At the applicant’s request, he was represented by lawyer O. Kh. during the initial questioning, which took place the same day.
7.  On 1 February 2001 M., a police officer at the Kyiv Kharkivsky District Police Department (“the police department”), who was in charge of an investigation into the death of a taxi driver, Kh., in the summer of 1998, questioned the applicant with a view to establishing his possible involvement in that crime. The crime was classified as infliction of grievous bodily harm causing death, for which legal representation of a suspect was not obligatory. According to the applicant, he was beaten with truncheons on his wrists and shoulders by police officers, who forced him to sign a waiver of his right to counsel and to confess that he and S. had murdered taxi driver Kh. in the summer of 1998 (“the 1998 crime”). On the same day, that criminal case was transferred to the Kharkivsky Prosecutor’s Office on the grounds that the applicant’s actions could be classified as murder and the investigation of such a crime was within the competence of the prosecutor’s office.
8.  On 2 February 2001 the criminal cases in respect of the 1998 and 2001 crimes were joined. On the same day, the applicant participated in a videotaped on-site reconstruction of the 2001 crimes. According to the minutes of this investigative action, which was attended by the applicant, his lawyer O. Kh., two attesting witnesses, investigating prosecutor G. and police officer M., who had questioned the applicant on the previous day, the applicant made statements concerning the circumstances of the 2001 crimes, but denied his involvement in the 1998 crime. His lawyer formally requested the authorities to conduct a medical examination of him. This request was handed to investigating prosecutor G., who acknowledged receipt by signing a copy of it. After the reconstruction had been conducted, the applicant signed a waiver in respect of his lawyer O. Kh., on the grounds that the said lawyer had prevented him from confessing to the 1998 crime. According to the applicant, while the waiver bore the date of 2 February 2001, it had actually been signed on a later date under coercion from the police officers and the case investigator.
9.  On an unknown date investigating prosecutor G. replied to lawyer O. Kh., stating that his request of 2 February 2001 for a medical examination of the applicant could not be granted since he had been removed from the case.
10.  On 7 February 2001 the applicant, who was represented by a newly‑appointed counsel, K., participated in a videotaped on-site reconstruction of the 1998 crime and confessed to having committed it with S.
11.  On 8 February 2001 lawyer O. Kh. complained to prosecutor V. that investigating prosecutor G. had not replied to his request for a medical examination of the applicant, would not permit him to visit the applicant, and had tried to force the applicant to request a replacement lawyer.
12.  On 9 February 2001 lawyer O. Kh. was informed that he had been removed from the case and was provided with the investigating prosecutor’s decision to that effect dated 2 February 2001. The decision stated, inter alia, that the applicant had confessed to the 1998 crime but had later asserted his innocence on the advice of lawyer O. Kh. The investigating prosecutor had therefore decided to remove lawyer O. Kh. from the case.
13.  On 9 February 2001 the applicant, who was represented by yet another lawyer, Mi., was formally charged with the 1998 and 2001 crimes, served with the indictment and questioned as an accused.
14.  On 14 February lawyer O. Kh. complained to prosecutor V. about the decision to remove him from the case, and asked him to quash that decision. In his reply of 19 February 2001, prosecutor V. informed lawyer O. Kh. that his removal from the case had been well-founded and was in accordance with Article 61 of the Code of Criminal Procedure. It was further noted that the lawyer had breached his professional duties by advising his client to assert his innocence and retract part of his previous confession.
15.  In a letter to the General Prosecutor’s Office (GPO) dated 4 March 2001, the applicant complained that he had signed the waiver in respect of lawyer O. Kh. under pressure from the police officers and the case investigator.
16.  On 6 March 2001 lawyer O. Kh. complained to the Kyiv Prosecutor’s Office about his removal. In a reply dated 13 April 2001, it stated that the decision to remove him had been well-founded, and that, moreover, the criminal case file contained a waiver in this respect signed by the applicant.
17.  On 10 March 2001 the applicant submitted a request to investigating prosecutor G., asking that lawyer O. Kh., his first lawyer in the case, replace lawyer Mi. as his defence counsel.
18.  On 24 April 2001 the Kharkivsky Prosecutor’s Office replied to the applicant’s letter of 4 March 2001. It informed him that the replacement of his lawyer had taken place at his request, that lawyer O. Kh. was allowed to return to the case, and that they had found no violation of criminal procedure law in the investigation of the criminal case against him.
19.  On 27 May 2001 the applicant asked investigating prosecutor G. to cross-examine him together with his co-accused S., since the accusations against him had been mainly based on statements made by S.
20.  On 1 June 2001 investigating prosecutor G. replied, informing the applicant that a cross‑examination would be conducted after S. was questioned further, in case any discrepancies emerged between their testimonies.
21.  On 8 June 2001 the applicant was questioned in the presence of his first lawyer O. Kh. He confirmed all the statements with regard to the 2001 crimes he had made during the interview on 27 January 2001. He also claimed repeatedly that he was innocent of the 1998 crime, and explained that he had been forced to confess to the latter crime by officers from the police department.
22.  On 24 June 2001 investigating prosecutor G. informed the applicant that his request for cross-examination had been rejected, since no discrepancies had been found between his and S.’s statements.
23.  On 20 November 2001 the Kyiv Appellate Court, acting as a court of first instance, convicted the applicant and S. of the 1998 and 2001 crimes and sentenced them both to life imprisonment. Three other individuals were sentenced to between three and six years’ imprisonment. In its judgment the court made no mention of the fact that the lawyer had been removed from the case. The court also disregarded the denials by the applicant and S. of their involvement in the 1998 crime on the grounds that their confessions during the pre-trial investigation had been detailed and consistent.
24.  On 18 April 2002 the Supreme Court of Ukraine upheld the judgment of the appellate court. In reply to a complaint by the applicant of a violation of his right to defence, the Supreme Court stated in its judgment given the same date that it found no evidence of a violation of the right to defence or of any other substantial violation of criminal procedure law that could provide a basis for quashing the judgment of the appellate court. The Supreme Court also stated that it had found no evidence that the applicant had been ill-treated.
25.  On 13 August 2002 the applicant lodged an application (no. 32092/02) with the Court, alleging that he had been subjected to ill‑treatment in police custody and that his complaints in that regard had not been given due consideration. He also complained that he had been deprived of legal assistance of his own choosing during part of the proceedings, had been forced to incriminate himself, and that the above violations had resulted in an unfair trial.
26.  By a decision of 13 November 2007, the Court declared his application admissible.
27.  On 12 June 2008 the Court found a violation of Article 3 and Article 6 §§1 and 3 (c). The Court established in particular that:
“67.  As concerns the adequacy of the investigation into the applicant’s allegations of ill-treatment, the Court considers that it had serious deficiencies. It notes in particular that no timely and specific medical examination was conducted on the applicant, despite the explicit request of his lawyer the day after the alleged ill-treatment took place. 68.  The Court recalls that following a complaint by the applicant’s wife the prosecutor decided not to institute criminal proceedings in respect of the above allegations. It does not appear that any investigative actions were actually taken, given that neither the applicant nor his wife was questioned. The prosecutor’s decision of 28 February 2001 referred only to the fact that, during questioning on 9 February, that is, prior to his wife’s complaint of 12 February, the applicant had denied having any injuries. Furthermore, none of the alleged perpetrators of the offence were questioned at that time. In this connection the Court cannot agree with the Government that the applicant’s wife, in February 2001, and the applicant himself, in March 2001, provided information of so general a nature that the identity of the alleged perpetrators could not be established. In her complaint of 12 February the applicant’s wife referred to the investigating prosecutor G. and unnamed officers of the Kharkivsky District Police Department. In the Court’s opinion that information would have been sufficient for an independent investigator to identify those concerned, had the allegations of the applicant’s ill-treatment been considered seriously. 69.  The Court further notes that the investigation into the applicant’s allegations lacked the requisite independence and objectivity. The first questioning of the applicant about his alleged ill-treatment was conducted by the investigating prosecutor G., whom the applicant’s wife, in her complaint of 12 February, clearly named among those who had coerced her husband. Moreover, in his refusal to institute criminal proceedings following the complaint of ill-treatment, prosecutor V., the head of the Kharkivsky District Prosecutor’s Office, did not even mention prosecutor G., who was from the same District Prosecutor’s Office. What is more, when the applicant provided the names of the other alleged perpetrators from the Kharkivsky Police Department, they were questioned by their alleged accomplice - investigating prosecutor G.
... 78.  Notwithstanding the Government’s arguments that the applicant’s right to silence was protected in domestic law, the Court notes that the applicant’s lawyer was dismissed from the case by the investigator after having advised his client to remain silent and not to testify against himself. This reason was clearly indicated in the investigator’s decision. It was also repeated twice in the prosecutors’ replies to the lawyer O. Kh.’s complaints. In one of those replies (dated 19 February) it was also noted that the lawyer had breached professional ethics by advising his client to claim his innocence and to retract part of his previous confession. 79.  Moreover, the Court finds it remarkable that the applicant and Mr S, over two years later, gave very detailed testimonies which according to the [sic] investigator contained no discrepancies or inconsistencies. This degree of consistency between the testimonies of the applicant and his co-accused raise suspicions that their accounts had been carefully coordinated. The domestic courts however considered such detailed testimonies as undeniable proof of their veracity and made them the basis for the applicant’s conviction for the 1998 crime, despite the fact that his testimony had been given in the absence of a lawyer, had been retracted immediately after the applicant was granted access to the lawyer of his choice, and had not been supported by other materials. In those circumstances, there are serious reasons to suggest that the statement signed by the applicant was obtained in defiance of the applicant’s will. 80.  In light of the above considerations and taking into account that there was no adequate investigation into the allegations by the applicant that the statement had been obtained by illicit means (see paragraphs 67-70), the Court finds its use at trial impinged on his right to silence and privilege against self-incrimination.
... 86.  The Court notes that in the instant case the applicant’s conviction for the 1998 crime was based mainly on his confession, which was obtained by the investigators in the absence of a lawyer and which the applicant retracted the very next day and then from March 2001 on. 87.  The Court further notes with concern the circumstances under which the initial questioning of the applicant about the 1998 crime took place. As can be seen from the relevant provisions of the Code of Criminal Procedure cited in the Domestic Law part, there is a limited number of situations in which the legal representation of the suspect is obligatory. One of the grounds for obligatory representation is the seriousness of the crime of which a person is suspected, and hence the possibility of life imprisonment as a punishment. In the present case the law-enforcement authorities, investigating the violent death of a person, initiated criminal proceedings for infliction of grievous bodily harm causing death rather than for murder. The former was a less serious crime and therefore did not require the obligatory legal representation of a suspect. Immediately after the confession was obtained, the crime was reclassified as, and the applicant was charged with, murder. 88.  The Court is struck by the fact that, as a result of the procedure adopted by the authorities, the applicant did not benefit from the requirement of obligatory representation and was placed in a situation in which, as he maintained, he was coerced into waiving his right to counsel and incriminating himself. It may be recalled that the applicant had a lawyer in the existing criminal proceedings, yet waived his right to be represented during his questioning for another offence. These circumstances give rise to strong suspicion as to the existence of an ulterior purpose in the initial classification of the offence. The fact that the applicant made confessions without a lawyer being present and retracted them immediately in the lawyer’s presence demonstrates the vulnerability of his position and the real need for appropriate legal assistance, which he was effectively denied on 1 February 2001 owing to the way in which the police investigator exercised his discretionary power concerning the classification of the investigated crime. 89.  As to the removal of lawyer O. Kh. on 2 February 2001, the Government’s argument that this was done solely at the applicant’s request seems scarcely credible, since this was not mentioned in the removal decision itself, and in the replies of the prosecutors it was referred to as an additional ground for the lawyer’s removal. 90.  The Court notes that the fact that two other lawyers who represented the applicant saw him only once each, during questioning, and never before the questioning took place seems to indicate the notional nature of their services. It considers that the manner of and reasoning for the lawyer’s removal from the case, as well as the alleged lack of legal grounds for it, raise serious questions as to the fairness of the proceedings in their entirety. The Court also notes that the lawyer was allowed back onto the case in June 2001 without any indication that the alleged grounds for his removal had ceased to exist.”
The Court’s judgment became final on 12 September 2008.
28.  The judgment of the Court and the possibility of a retrial in the applicant’s case attracted media attention in Ukraine. Reports mentioned, among other things, that the applicant’s co-defendant S. had died several years earlier, while serving his sentence.
29.  On 30 December 2008 the applicant lodged a request with the Supreme Court of Ukraine for an extraordinary review of his criminal case under Article 400 § 4 of the Code of Criminal Procedure and Article 10 of the Law of Ukraine “On the Execution of Judgments of the European Court of Human Rights” (see paragraphs 34 and 36 below). The request was based on the Court’s judgment of 12 June 2008 (cited above), in which violations of Articles 3 and 6 had been found. The applicant also asked to be present during the examination of his request.
30.  The Deputy Prosecutor General also lodged a request for review of the applicant’s case with the Supreme Court. He asked the court to exclude the applicant’s original confessions to the murder committed in 1998 as evidence, and maintained that the judgment had otherwise been lawful and well-founded. According to the applicant, his lawyer B. only learned of the content of the request at the hearing.
31.  On 31 July 2009 the Supreme Court examined the case in the absence of the applicant but in the presence of his lawyer and the prosecutor. It allowed the applicant’s request in part and the prosecutor’s request in full. The Supreme Court noted that the domestic courts, having found the applicant guilty of the 1998 crime, had relied on his confession of 1 February 2001 and his questioning of 2 February 2001. It further noted that the European Court of Human Rights had held that there had been a violation of the applicant’s rights as guaranteed by Article 6 §§ 1 and 3 (c) of the Convention, namely his right to defence, since he had admitted his guilt to the police officers and made a written confession to the 1998 crime in the absence of a lawyer. The Supreme Court further held:
“In review of the case (При перегляді даної справи), the judges at their joint meeting concluded that the written confession and statements of O.V. Yaremenko during his questioning as a suspect of murder of Kh. could not be considered admissible evidence that prove O.V. Yaremenko’s guilt in respect of that episode, since they were obtained in violation of the requirements of criminal procedure law.
In these circumstances, they should be excluded from the body of evidence accusing O. V. Yaremenko of this episode of criminal activity.
However, the exclusion of those pieces of evidence from the court decisions does not significantly affect the correctness of the conclusion of the court as to the proof of O.V. Yaremenko’s guilt on the count of the murder of Kh., because the case file contains other pieces of evidence that prove his guilt of that offence.”
32.  The Supreme Court next listed other pieces of evidence that proved the applicant’s guilt, namely confessions made by him and S. during the on-site reconstruction of the crime and during further questioning with the participation of the lawyers, as well as a toolbox, which according to the witnesses belonged to Kh. and which S. left with his acquaintance D. in 1998. The Supreme Court further noted that the confessions made by the applicant and S. corresponded to the conclusions of the forensic expert examinations as to the circumstances of Kh.’s murder. It finally noted that the applicant’s allegations that the investigation into his alleged ill-treatment had been inefficient were not supported by the materials in the case file, and that there was no evidence that the applicant had been forced to confess. It concluded that there had been no substantial violation of criminal procedure law which would require a quashing of the judgment in the applicant’s case.
33.  By letter of 3 September 2009 the decision of the Supreme Court was sent to the applicant’s representative.